Haryana

Karnal

487/2010

M/s A.V. Poultary Consultansy - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Sh. S.S. Moonak

18 Nov 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                           Complaint No.487 of 2010

                                                           Date of Instt. 14.07.2010

                                                           Date of decision:02.03.2015

 

M/sA.V.Poultary Consultancy through its Partner Shri Satnam Singh resident of Nilokheri tehsil and District Karnal.

                                                                     ……..Complainant.

                                                Vs.

United India Insurance Company Limited through its Branch Manager, near Bus Stand G.T.Road, Karnal.

                                                                   …..Opposite Party.

 

                                      Complaint u/s 12 of the Consumer

                                      Protection Act.

 

Before           Sh.Subhash Goyal……..President.

                    Sh.Subhash Chander Sharma       ……Member.

 

Argued by:-  Sh.S.S.Moonak   Advocate for the complainant.

                   Sh. Sudhakar Mittal   Advocate for the OP.

 ORDER

           

                        In brief the  complainant has filed the present complaint against the OP u/s 12 of the Consumer Protection Act alleging deficiency in services on the allegations that the complainant firm was  dealing in transporting of Eggs from Nilokheri/Karnal to other places to different places and obtained Marine Cargo Open Policy vide policy No.1100701/21/08/02/00000075 for a sum of Rs.one crore and as per the terms and conditions of the policy, the value of  goods i.e. eggs used to be deducted from the total sum insured. The photo copies of the transaction declarations started from 18.7.2008 to 27.11.2009 have been attached.  It has been further alleged that on 28.8.2009, the  canter bearing registration No. HR-57-2340 was loaded with 4000 eggs trays  and each tray was having 30 eggs  and the total value of the said consignment was Rs.2,94,000/- which was duly accepted  by the Ops  and the said sum of Rs.2,94,000/- was deducted from the balance insured amount of the policy of one crore and  the said canter met with an accident on the mid-night of 29-30/8/2009 and the said consignment was destroyed/damaged and the complainant informed the OP and the OP appointed surveyor who visited the spot and submitted  report  but the claim of the complainant was repudiated vide repudiation letter dated 19.01.2010. The complainant has alleged that the said policy was never terminated and as such   repudiation of the claim of the complainant was illegal, unwarranted and same tantamounts to deficiency in services on the part of the OP. Thus, the complainant has filed the present complaint against the OP alleging deficiency in services on the part of the OP and has prayed that the OP be directed to make the payment of the claim amount alongwith compensation for the harassment caused to him and the litigation expenses. The complainant has also tendered his affidavit in evidence in support of the contents of the complaint alongwith some other documents which will be discussed at the relevant stages.

2.                On notice the OP appeared and filed written statement raising the preliminary objections that the complainant was not covered under the definition of consumer as envisaged under the provisions of the Consumer Protection Act and that the complainant has no cause of action for filing of the present complaint.

                   On merits, it was contended that the complainant obtained the open policy for a sum of Rs.one crore and the said policy was valid w.e.f. 18.7.2008 to 17.7.2009 whereas the accident had taken place on 30.8.2009 and as such the occurrence was not covered under the policy and thereafter the complainant took the another policy on 17.07.2009 which was  valid w.e.f. 19.11.2009 to 18.11.2010 Ex.O3 and as such on the day of occurrence there was no contract of insurance and as such the claim has rightly been repudiated  Sh.Mahesh Chander, Senior Divisional Manager of the OP has also tendered his affidavit Exd.O1 and  copy of the insurance policies Ex.O2 and Ex.O3.

3.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

4.                 Therefore, after going through the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that  the  complainant has filed the present complaint against the OP u/s 12 of the Consumer Protection Act alleging deficiency in services on the allegations that he obtained marine cargo open Insurance  policy and value of the said policy was one crore and as per terms and conditions of the said policy, the  value of the goods i.e. eggs used to be deducted from the total sum insured on every consignment and on 28.8.2009, the  canter bearing registration No. HR-57-2340 was loaded with 4000 eggs trays  and each tray was having 30 eggs  and the total value of the said consignment was Rs.2,94,000/- which was duly accepted  by the Op and the said sum of Rs.2,94,000/- was deducted from the balance insured amount of the policy of one crore and  the said canter met with an accident on the mid-night of 29-30/8/2009 and the said consignment was destroyed/damaged and the complainant informed the OP and the OP appointed surveyor who visited the spot and submitted  report  but the claim of the complainant was repudiated vide repudiation letter Ex.C90. The complainant has alleged that the said policy was never terminated and as such                      repudiation of the claim of the complainant was illegal, unwarranted and same tantamounts to deficiency in services on the part of the OP.

                    However, as per contention of the OP, the complainant obtained the open policy for a sum of Rs.one crore Ex.O2 and the said policy was valid w.e.f. 18.7.2008 to 17.7.2009 whereas the accident had taken place on 30.8.2009 and as such the occurrence was not covered under the policy and thereafter the complainant took the another policy Ex.O3  which was valid from 19.11.2009 to 18.11.2010 and as such on the day of occurrence there was no contract of insurance and as such the claim has rightly been repudiated in view of the law laid down by the Hon,ble State National  Commission, in case Andhra  Bank Versus Mudunuri Baby Sarojini and Another 2007(1) CPC page 422

 

5.                 Therefore, after going through the evidence and the circumstances of the case, no doubt the complainant obtained the open policy to the extent of one crore and the complainant used to send the consignments from time to time and used to declare the consignment value so that all the consignments in a year doesnot exceed the sum of one crore for which the policy was meant. It has come in evidence that the insurance policy which the complainant had obtained was  valid w.e.f. 18.7.2008 to 17.7.2009 and the loss has taken place on 30.8.2009 i.e.  at the time when the said policy had expired and consequently the  claim was repudiated vide Ex.C90.

6.                 The complainant had taken another policy after the expiry of the policy Ex.O2 which was valid w.e.f 19.11.2009 to 18.11.2010 which has been placed on the file as Ex.O3. Therefore, the accident/loss had taken place on 30.8.2009 i.e. the day on which day neither the policy Ex.O2 nor the policy Ex.O3 was in subsistence and as such on the day of occurrence there was  no contract of insurance between the complainant and the OP and as such no liability can be fastened upon the OP to reimburse the claim.

                    The argument on behalf of the complainant that the OP was estopped from taking the plea that there was no contract of insurance in view of the fact that after the  lapse of the policy Ex.O2, the OP continued to receive declaration forms regarding consignment is not sustainable in the eyes of law because insurance is law of contract and in the absence of any contract, no liability can be fastened upon the insurer-OP.

7.              Therefore, there is absolutely no deficiency in service on the part of the OP as the occurrence had taken place after lapse of the policy Ex.O2 and as such we dismiss the present complaint. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.  

Announced
dated: 02.03.2015                                                                      

                                                          (Subhash Goyal)

                                                             President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Subhash Chander Sharma)

                             Member.

 

 

Argued by:-  Sh.S.S.Moonak   Advocate for the complainant.

                   Sh. Sudhakar Mittal   Advocate for the OP.

 

                   Arguments in part heard. For remaining arguments, the case is adjourned to2.03.2015.

 

Announced
dated: 26.02.2015                                                                      

                                                          (Subhash Goyal)

                                                             President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Subhash Chander Sharma)

                             Member.

 

Argued by:-  Sh.S.S.Moonak   Advocate for the complainant.

                   Sh. Sudhakar Mittal   Advocate for the OP.

 

                   Remaining arguments heard. Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated: 02.03.2015                                                                      

                                                          (Subhash Goyal)

                                                             President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Subhash Chander Sharma)

                             Member